The consulting physician, in a detailed report, indicated the applicant needed surgery and submitted an RFA for x-rays and disc replacement and fusion surgery, which the consulting physician would himself perform.

Defendant received the RFA the same day, August 3, 2015. Defendant issued a UR denial on August 12, 2015. The consulting surgeon submit an internal UR appeal which was denied.

The primary treating physician submitted an RFA for the surgery recommended by the consulting physician which defendant did not submit to UR, apparently relying on the prior denial of the RFA of the consulting surgeon.

The matter proceeded to expedited hearing on the issue of timeliness of the utilization review.

Defendant contended that the consulting physician was not a secondary treating physician and that it had no obligation to submit his RFA to its UR reviewer.

The WCJ ruled the consulting surgeon, acting at the direction of the PTP, could properly submit an RFA as a secondary treating physician and the defendant had an affirmative obligation to conduct a timely UR of the request.

Because the review was not timely, the WCAB determined that she had jurisdiction to determine medical necessity. She found based on the facts before her, substantial medical evidence supported the reasonable medical necessity of both the x-rays and the surgery.

Defendant filed a petition for reconsideration.

The WCAB’s decision was affirmed.

The panel noted that the statutory provisions in the Labor Code that instituted UR do not specify that the physician requesting authorization must be the PTP.

The AD, consistent with authority from the Legislature, through the statutory provisions, has implemented rules to further the purpose of UR. Among those rules is 9792.6 .1 (t), which applies to dates of injury after January 1, 2013, and requires that an RFA set forth on a specified form and be completed by a treating physician.

The RFA must specifically identify the requested treatment and be accompanied by a report or reports substantiating the need for the requested treatment. In addition, rule 9792.6.1(t)(3) mandates that a treating physician (not necessarily a PTP must sign an RFA).

In this case, however, the Board noted that the date of injury is March 13, 2012, before the 2013 rules came applicable. The Board however indicated the analysis remains the same.

A.D. rule 9792.9 applied and it refers to requesting physicians and does not specify or distinguish whether a primary or secondary physician must issue the RFA. In addition, rule 9785 defines a primary treating physician as the physician primarily responsible for managing the medical care for an injured worker and rule 9785 (a) (2) defines secondary treating physician as a physician other than the primary treating physician who examines or provides treatment to the employee but is not primarily responsible for continuing management of the care the employee.

The Board rejected defendant’s contention that the PTP’s role as defined in the Rules does not allow delegation of the PTP’s duties including the power to issue RFAs. The panel points to prior Appeals Board decisions that have determined that request by a secondary physician trigger a defendant’s obligation to timely do UR. (DeRosa 43 CWC are 38).

In the DeRosa case the Board relied on the absence of statutory authority requiring a PTP to issue an RFA to overturn a WCJ’s determination that a defendant was not obligated to submit a secondary treating physician’s RFA to UR.

In subsequent cases the Board has seen an affirmative obligation to submit secondary treating physician’s RFAs to UR.

The central issue in those cases, as in the instant case, was whether a PTP’s referral to a consultant made the consultant a secondary treating physician. Those cases decided the question in the affirmative, importantly noting that the consultants affirmatively undertook to care for the patient, including performing the actual surgery. The panel could identify only one contrary decision, distinguishable as based on a factual discrepancy whereby applicant could not prove that the secondary physician submitted the RFA to defendant or that, in submitting the request, the secondary physician use the proper form.

The Board concluded that because the consulting surgeon was enlisted to evaluate applicant’s need for surgery and to perform said surgery if necessary, he qualified as a secondary treating physician under rule 9785(a)(2). Applicant’s primary treating physician, a pain medicine specialist, recognize the need for specialist to evaluate and perform surgery if medically necessary. The consulting physician accepted that treatment role.

The panel further concluded there is no express requirement in the Labor Code, or the rules, that an RFA may only be submitted by a primary treating physician, there is little support for the contention that an RFA submitted by a secondary treating physician can be disregarded and not submitted to UR.

Therefore, in this case the Board concluded the defendant failed to timely conduct UR of the secondary treating physician report which then open the door to the WCJ to assert jurisdiction over medical treatment.

Because defendant did not challenge the reasonable medical necessity of the treatment on reconsideration, the Board affirmed the WCJ.

In an editor’s note it was pointed out correctly that the rules dealing with injuries on or after January 1, 2014 apply not only to injuries on or after that date but also earlier injuries of the RFA decision was communicated after July 1, 2013 which was in this case. The result would not have changed had the Board come to this conclusion.

Bissett-Garcia v. Peace and Joy Center (BPD) (44 CWCR 112):

Applicant sustained an admitted injury to her bilateral upper extremities and shoulders.

The case was settled by Compromise and Release with open future medical care.

Prior to the approval of the agreement, applicant’s primary treating physician communicated to defense counsel that applicant required home assistance with activities of daily living of eight hours a day seven days a week for cooking, cleaning, self-grooming and transportation.

The request did not appear on the DWC form RFA required by A.D. rule 9792.9.1 or a substitute described in A.D. rule 9792.9.1 (c) (2) (B).

Nevertheless, defense counsel sent the report to UR and non-certification issued on September 17, 2016.

The UR denial stated that the reviewer had left a message for the physician on both the afternoon of September 16, 2015, and the morning of September 17, 2015. As a result of a telephone call between applicant’s counsel and the reviewer, a second denial issued on October 2, 2015, this one stating the reviewer had successfully communicated with the physician on September 17, 2015, informing him about the reasoning for the denial.

Applicants attorney contested the validity of the UR decision.

The WCJ held that the September 17, 2015 UR had not been timely communicated because it had not recited the content of the telephone call between the reviewer and the primary treating physician.

Defendant filed a petition for reconsideration.

The WCAB observed that there does not appear to be any requirement that a utilization review denial recite the contents of a telephone conference between the reviewer and the treating physician, and explain the rationale behind the utilization review decision.

Even assuming such requirement existed, said the panel, that requirement would be subsumed under the “material procedural defect” rule and would not, consistent with the en banc decision in Dubon II constitute a valid reason to overturn a UR determination.

Dubon II held that the Board has jurisdiction over a UR determination only if the determination was untimely. The decision squarely retracted the proposition that any procedural defect other than timeliness vested the WCAB with jurisdiction to review the propriety of a utilization review denial.

The panel added that the WCJ’s determination that the lack of denial and the UR decision regarding the conversation between the reviewer in the primary treating physican rendered it defective, is too closely related to the reasoning rejected in Dubon II. the WCJ’s decision if it were to stand, would implicitly resurrect the material procedural defect theory rejected in Dubon II.

The WCAB stated that the UR determination had been timely made within five business days of its communication to the defendant and timely served, and so became reviewable under the IMR process.

The WCAB held that the determination dated September 17, 2015, had been timely and the WCAB lacked jurisdiction to review it.

This case appears to hold that a failure to communicate the UR denial to the medical provider within 24 hours is not a timeliness issue but a procedural issue. This case appears to be contrary to other cases including Bodam that held timeliness requires that the UR be timely conducted and timely communicated within 24 hours to the provider by phone, or fax and two days in writing to applicant, applicant’s attorney and the physician.

Labor Code §4610.6(d) provides that the organization conducting the IMR shall complete its review and make its determination in writing within 30 days of the receipt of the request for review and supporting documentation, or within less time as prescribed by the administrative director.

The issue presented in this case was whether the Appeals Board was correct in concluding that an IMR determination that issued after the 30-day period is invalid in thereby this jurisdiction with the Appeals Board decide whether the proposal is medically necessary and appropriate.

The court indicated their analysis turns, in large part, and whether the language of the Statute is mandatory-such that a failure to comply with the Statute’s directive renders the resulting government action invalid, or merely directory.

The Court of Appeal disagreed with the Appeals Board and concluded the 30-day time limit in Labor Code §4610.6 (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director. The Court of Appeal indicated their interpretation of the Statute in this manner is consistent with long-standing case law regarding the mandatory-directory dichotomy, and implements the Legislature’s stated policy the decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges. They therefore annul the decision of the Appeals Board and remanded the matter for further proceedings.

The facts of the case show that the treating physician submitted a request for authorization in the form of a lumbar epidural injection. The utilization review timely denied the request. Applicant requested independent medical review. State Fund sent the necessary medical records to Maximus Federal Services for review on November 26, 2014. January 8, 2015, Maximus issued its IMR determination, upholding the denial of the proposed medical termination. The IMR determination became the determination of the director as a matter of law. (Labor Code §4610 (g)) The applicant’s attorney appealed the IMR determination to the Appeals Board, which was directed to be heard by a WCJ.

The WCJ, at the hearing, agreed the IMR determination was issued 13 days late, but nevertheless found the determination was valid and binding on the parties, concluding that an untimely IMR determination does not confer jurisdiction on the Appeals Board to decide any medical treatment issue. Applicant filed a petition for reconsideration which was granted by the Appeals Board and found that the WCAB did have jurisdiction and there was substantial evidence to support the treatment. One panel member dissented and would have found the IMR determination, though untimely, was valid and binding on the parties. A petition for writ of review was filed.

The Court of Appeal first discussed the legislative enactments pertaining to the evaluation of an injured worker’s request for authorization of medical treatment. They specifically review the legislation regarding utilization review and the Sandhagen case and the injured worker’s opportunity to challenge an adverse utilization review determination by independent medical review.

The Court of Appeal then indicated that Labor Code §4610.6(d), provides that the organization performing the independent medical review “shall complete its review and make its determination in writing, and in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the request for review and supporting documentation, or within less time as prescribed by the administrative director…. Subject to the approval of the Administrative Director, the deadlines for analysis and determinations involving both regular and expedited reviews may be extended for up to three days and extraordinary circumstances or for good cause. The parties dispute the meaning and effect of the word “shall” in this provision.

According to the Appeals Board, “shall” is mandatory and any IMR determination issued after the 30-day time frame is necessarily invalid. The Appeals Board concluded that construing “shall” is mandatory, such that an untimely IMR determination is invalid, comports with both the ordinary meaning in the statutory definition of “shall.”

The Court of Appeal indicated that in statutes directing government action “shall” may be used in two different ways: the mandatory, directory context, or the mandatory-permissive context. The court noted that, in mandatory-permissive context, the term mandatory refers to an obligatory procedure which a government entity is required to follow as opposed to a permissive procedure which a government entity may or may not as it chooses. By contrast, the directory mandatory designation does not refer to whether a particular statutory requirement is permissive or obligatory, but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the government action to which the procedural requirement relates. In other words, where a government action is mandatory and the obligatory-permissive sense and the government fails to act, the government can be compelled (mandated) to act in accordance with the statute. But where a government action is mandatory and the mandatory-directory and the government fails to act, it effectively loses jurisdiction to act in accordance with the statute.

Generally, time limits applicable to government action are deemed to be directory unless the legislator clearly expresses a contrary intent. In ascertaining probable intent, California courts have expressed a variety of tests. In some cases, focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. Other cases have suggested that a time limitation is deemed merely directory unless a consequence or penalty is provided for failure to do the act within the time command. Applying either of these tests the court concluded that the Legislature intended the 30-day provision in section 4610.6 (d), to have a directory, rather than a mandatory, effect.

As noted, statutory time limits are usually deemed to be directory in the absence of a penalty or consequence for noncompliance. Statute setting forth time frames for government actions that do not include a self-executing consequence are almost universally construed to be directory, rather than mandatory or jurisdictional.

The court then applying the analysis to the present case concluded that the 30-day period provided in Labor Code 4610.6(d) is directory, rather than mandatory and jurisdictional. Neither Section 4610.5, which relates to the initiation of IMR, nor Section 4610.6, which relates to the execution of IMR, provides any consequence or penalty in the event the IMR organization, under the auspices of the director, fails to issue an IMR determination within the 30-period. Moreover, the Legislature provided that the exclusive means to challenge an IMR determination is by appeal, and expressly limited the grounds upon which any appeal may proceed. Notably, untimeliness of the IMR determinations is not one of the statutory grounds for appeal. The absence of a penalty or consequence for failure to comply with the 30-day time limit, coupled with the limited grounds for appeal, indicate the Legislature did not intend to develop the director of jurisdiction to issue an IMR determination after the 30-day window expires.

The court went on to indicate that construing the 30-day provision as directory furthers the legislative objective of S.B. 863. In S.B. 863 made express findings regarding the purpose of IMR. First, it found the prior system of dispute resolution concerning an injured worker’s core request for medical treatment did not uniformly result in the provision of treatment that adhere to the highest standards of evidence-based medicine, adversely affected the health and safety of workers injured in the course of employment. By creating IMR, a system in which medical professionals ultimately determine the necessity of requested treatment, the Legislature intended to further the social policy of the state in reference to using evidence-based medicine provide injured workers with the highest quality of medical care.

Further, the Legislature observed that the prior system of dispute resolution, the process of appointing qualified medical evaluators to examine patients and resolve disputes was not only costly and time-consuming, but it prolonged disputes and caused delays in the medical treatment for injured workers. The Legislature also noted that the use of medical evaluators hired by the parties often resulted in bias on the part of the examiners, and therefore found that the independent and unbiased medical expertise of specialists was necessary to ensure timely and medically sound determinations of disputes over appropriate medical treatment.

The Court of Appeal concluded from these findings that the Legislature intended to remove the authority to make decisions about medical necessity of the proposed treatment for injured workers from the Appeals Board and place it in the hands of independent, unbiased medical professionals. Construing section 4610.6 (d) as directory best furthers the Legislature’s intent in this regard. The Appeals Board’s conclusion in this case that an ultimately untimely IMR determination terminates the IMR process and vest jurisdiction in the Appeals Board’s to determine medical said necessity is wholly inconsistent with the legislator stated goals and their evident intent.

Other provisions of S.B. 863 support the conclusion that the Legislature did not intend compliance within the time limits in section 4610.6 (d) to effectively devist the director of jurisdiction to conduct IMR. Labor Code section 4604 provides that controversies between employer and employee arising under this chapter shall be determined by the Appeals Board, upon request of either party, except as otherwise provided by section 4610.5. Labor Code section 4062 provides that if the employee objects to a decision based pursuant to section 46 tend to modify, delay, deny a request for authorization of medical treatment recommendation made by a treating physician, the objection shall be resolved in accordance with the independent medical review process established in 4610.5. Taken together, these enactments remove disputes over the medical necessity of requested treatment from the jurisdiction of the Appeals Board, at least in so far as they are within the scope of section 4610.5.

Further the Legislature provided that the IMR determination is presumptively correct and appeal is strictly limited. Further, even if an appeal from an IMR determination is successful, the case does not go to the Appeals Board for its review, instead, successful appeal results in a second IMR. The statutory provisions further indicate the Legislature intended to limit the jurisdiction of the appeals Board to determine medical necessity a proposed treatment.

Finally, and perhaps most tellingly, the Legislature provided that in no event shall a worker’s compensation administrative law judge, the Appeals Board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization. (4610.6 (i)) the court found this portion of the statute, particularly the use the phrase “in no event”, to be a frank expression of the Legislature’s desire to remove the issue of medical necessity a proposed treatment from the jurisdiction of the Appeals Board in all cases subject to IMR. The Legislature’s intent would be defeated by giving section 4610.6 (d), mandatory effect, as the Appeals Board did in the present case.

As to the issue raised by the applicant’s attorney that the primary goal was the applicant receive prompt medical treatment, the Court of Appeal stated that the statutory construction adopted by the Appeals Board would not reduce delay; it will perpetuate the time-consuming litigation process Legislature set out to eliminate. The court pointed out that in this case Maximus issued the IMR decision 79 days after the UR determination and 13 days after the 30-day time frame however, the Appeals Board did not render its decision until 13 months after the UR rejected the treatment and more than 10 months after Maximus render the IMR determination.

The court indicated they found no evidence in the statute or legislative history to indicate the Legislature intended to vest the director of jurisdiction to conduct IMR simply because the IMR determination is untimely.

Furthermore, the court said in construing the 30-day time frame provided in section 4610.6 (d) as mandatory would lead to absurd results. Specifically, the Legislature has provided that weren’t applicant successfully challenges and IMR determination on appeal, the remedy is a second IMR determination by a different IMR organization, or by a different reviewer at the same organization. Thus, even if an IMR is procured by fraud or affected by conflict of interest on the part of the reviewer, the applicant is only entitled to a new IMR and cannot litigate the issue of medical necessity before the Appeals Board. Meanwhile, under the Appeals Board construction, an injured worker who receives an untimely IMR determination would be required in every case to engage in costly and time-consuming litigation before the Appeals Board, even if the IMR determination is only one daylight and authorizes the requested treatment. We do not believe the Legislature would sanction such an outcome.

The court went on to indicate that an injured worker may bring a petition for writ of mandate to compel the director to issue an IMR determination. The Legislature created a duty on the part of the director and to ensure that IMR determinations are timely provided to injured workers seeking to overturn their employer’s adverse utilization review determinations. They therefore presumed that when the Legislature Legislature enacted S.B. 863 it was aware of Code of Civil Procedure section 1085 and its availability to compel administrative agency action. The court found no indication that the Legislature intended to bar injured workers from seeking to compel the director to fill his or her statutory obligation to render IMR determination. They therefore held that to the extent the director fails to render an IMR determination within the time frame provided by 4610.6 (d), fails to ensure the IMR organization complies with the applicable statutes and regulations, a writ of mandate under Code of Civil Procedure 1085 will lie, in appropriate circumstances, to compel the directors to issue an IMR determination.

The decision of the Appeals Board after reconsideration was annulled. The matter was remanded with instructions to cut duck further proceedings consistent with this decision.

De Guevara v. La GolondrinaBPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 84):

The evidence established that the applicant called five doctors from the MPN list who did not accept her as a patient. The WCAB ruled that the five phone calls did not meet applicant’s burden of proof that the applicant was denied medical care and therefore entitled to treat outside defendant’s MPN.

The WCAB took note of the fact that there were more and 65 doctors within 15 miles of applicant’s ZIP Code who are qualified to treat her for her condition. The WCAB found that her efforts to contact only five of the doctors did not shift the burden to the defendants to establish that reasonable treatment was available within the MPN.

An additional important issue appeared to be that the applicant did not avail herself of the medical access assistance available pursuant to Labor Code § 4616 (a) (5). The WCAB appeared to have a problem with allowing treatment outside the defendant’s MPN when the applicant did not avail themselves of this service.

Romero v. Stones and Tradition(SCIF) (BPD) (44 CWCR 91):

The WCJ found a UR decision dated September 14, 2015 was timely as to two treatment modalities but was untimely as to oxycodone and H-wave supplies. The WCJ found that the oxycodone and H-wave supplies are reasonable necessary to cure from applicant’s injury.

Defendant filed a petition for reconsideration. The Board stated that Labor Code §4610(g)(1) requires that prospective or concurrent UR decisions shall be made in a timely fashion not to exceed five working days from receipt of the information reasonably necessary to make that determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.

The Board stated that Labor Code § 4610 (g) (1) provides two alternative timelines within which the Utilization review determination must be made.

AD rule 9792.9 .1 states a request for authorization must be made on a DWC Form RFA. Rule 9792.9 .1 (c) provides that the UR timeframe is extended when additional information is requested necessitating an extension under subdivision (f).

Rule 9792.9 .1 (f) (1) (A) provides that once an RFA is submitted the timeframe for UR decision may be extended if the claims administrator or reviewer is not in receipt of all the information reasonably necessary to make a determination.

In cases where additional information is necessary, a reviewer or non-physician reviewer shall request the information from the treating physician within five business days from receipt of the request for authorization. Once the additional information is requested, if the additional information requested is not received within 14 days from the receipt of the completed request for authorization for prospective or concurrent review the reviewer cell deny the request with the stated condition the request will be considered upon receipt of the information.

The WCJ found the August 12, 2015 UR decision was timely and the WCAB upheld that decision. The WCAB found therefore defendant was not aggrieved by this decision.

The September 14, 2015 UR decision was a perspective review of four different treatment modalities. UR physician requested additional information pertaining to two of the treatment modalities and issued a decision within 14 days as required by Labor Code 4610. The WCJ reason that the UR decision should have issued a decision regarding the two treatment modalities for which no additional information was required within five days.

The WCAB provides that an RFA triggers the timelines for completing utilization review and does not contemplate different timelines for different treatment request within an RFA. Accordingly, the September 14, 2015 UR decision is timely as to all modalities requested five the RFA.

The WCAB reversed found that the applicant was not entitled to treatment denied by the August 12, 2015 utilization review.